Shawn A.Jackson v. James T. Conway

The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Shawn L. Jackson ("Jackson" or "Petitioner") filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention state custody as the result of a judgment in Monroe County Court convicting him after a jury trial of 47 counts, including multiple counts of sodomy in the first degree (New York Penal Law former § 130.50(1)), assault in the third degree (New York Penal Law ("P.L.") § 120.00(1)), sexual abuse in the first degree (P.L. § 130.65(1)), rape in the first degree (P.L. § 130.35(1)), rape in the third degree (P.L. § 130.25(2)), sodomy in the third degree (P.L. former § 130.40(2)), and incest (P.L. § 255.25). During the pendency of the proceeding, the Court appointed counsel from the CJA panel to represent Petitioner and held an evidentiary hearing.

The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

This is a corrected Decision and Order issued following the Court's grant of Petitioner's motion for relief pursuant to Fed. R. Civ. P. 52 and 59. As explained more fully in the Rule 59 Order, the Court's finding and judgment as to the claim of prosecutorial misconduct was based on a manifest factual error which affected the legal correctness of the judgment. As discussed further below, the prosecutorial misconduct claim is fully exhausted and, in addition, warrants habeas relief.

The Court's previous Decision and Order regarding the disposition of the Petition is hereby withdrawn. Habeas relief is granted in part and denied in part, as explained below.

II. Factual Background and Procedural History

The following summary of the facts and procedural history of Jackson's case is drawn from the trial transcript, available documents from the state court record, and from the pleadings submitted by Jackson pro se, Jackson's state-court appellate counsel, Jackson's habeas attorneys, and respondent's attorney.

A. Pre-Trial Proceedings

On November 30, 2000, police officers from the Town of Greece police department were summoned to Jackson's house on Tobin Drive, where they were met by his wife, Rebecca Jackson ("Rebecca"); his ex-wife, Karen Jackson ("Karen"); and his teenaged daughter "CJ". All three women accused Jackson of raping them each multiple times earlier that evening. Jackson was found sleeping on the living room sofa, and was taken to the Greece Police Department for questioning. Karen and CJ were taken to Rochester General Hospital for medical evaluation.

Once at the police station, Sergeant Christopher Bittner ("Sgt. Bittner") of the Greece Police Department spoke with Jackson in an interview room. When Jackson asked if he was under arrest, Sgt. Bittner replied no. Jackson got up as if to leave the room, and Sgt. Bittner immediately placed him under arrest and read him his Miranda*fn1 warnings. Jackson invoked his Fifth Amendment right to remain silent and refused to speak with the police. Jackson then was placed in a holding cell.

Soon thereafter, Sgt. Bittner contacted Kathy Bonisteel, a Child Protective Services caseworker for the Monroe County Department of Social Services ("Caseworker Bonisteel") who was investigating the allegations of abuse, and facilitated an interview between her and Jackson. Caseworker Bonisteel's report contained statements from Jackson regarding his extremely unconventional sexual relationship with his wife and ex-wife and his belief that he was the "Alpha Male" of the family. See T.27, 38. 499-506.*fn2 The report also indicated that Jackson had agreed with Caseworker Bonisteel that it was "possible he was so drunk that he wouldn't have remembered if he raped [CJ]" and that "[h]e said it was a possibility . . . he said he could have been the one to rape [CJ]." T.504.

Jackson initially was charged in a five separate felony complaints with two counts of first degree rape, two counts of first degree sodomy, and one count of incest. All of these charges involved CJ, Jackson's daughter. Subsequently, on or about January 18, 2001, a 48-count indictment was issued against Jackson, which included charges of first degree sodomy, first degree rape, first degree sexual abuse, first degree coercion, attempted first degree sodomy, third degree rape, third degree sodomy, incest, third degree assault, and endangering the welfare of a child. The indictment lacked specificity as to the dates, times, and places of each alleged crime. Most of the crimes in that indictment stemmed from the incidents alleged to have occurred on the night of November 29, 2000, and the early morning of November 30, 2000, at Jackson's house.

A suppression hearing was held pursuant to People v. Huntley on March 23, 2001, before Justice Stephen R. Sirkin in New York State Supreme Court, Monroe County, to determine the admissibility of Jackson's statements contained in Caseworker Bonisteel's report. The judge heard testimony that Sgt. Bittner was aware that Caseworker Bonisteel was conducting a parallel Child Protective Services investigation of the same incident underlying Jackson's arrest. Sgt. Bittner told Caseworker Bonisteel that Jackson had refused to speak with the police, and arranged for Caseworker Bonisteel to have access to Jackson to interview him in connection with her investigation on behalf of Child Protective Services. Although the police did not officially take part in this interview, several officers, including Sgt. Bittner, overheard the 45- minute conversation between Jackson and Caseworker Bonisteel, in which Jackson made inculpatory statements. See Huntley Transcript dated March 23, 2001 ("Huntley Tr.") at 12-13, 7-21, 27, 33-34, 38.

Trial counsel, who at that time was Matthew Clark, Esq., of the Monroe County Public Defender's Office, argued that the investigations being conducted by Child Protective Services and the Greece Police Department were concurrent, obviously involving the same incident. Attorney Clark argued that Caseworker Bonisteel essentially was acting as an agent of the police when she spoke with Jackson on the night of his arrest at the police station. Huntley Tr. at 42-46. The suppression court held that Caseworker Bonisteel's investigation was part of a "completely separate civil proceeding" and was not "part of any criminal proceeding." Id. at 49.. The suppression court specifically found that Caseworker Bonisteel "was not a public servant and, in this case, did not act as a law enforcement officer, but [as] a child protective worker." Id. As such, there was "no requirement on the part of the protective worker to give any Miranda warnings." Id. at 48-49. Accordingly, the suppression court ruled that Jackson's constitutional rights were not violated, and his statements to Caseworker Bonisteel could be used against him at trial by the prosecutor as evidence-in-chief. Id. at 45, 48-49.

On May 31, 2001, Associate Justice Peter E. Corning--the third trial judge to be assigned to the case--addressed the prosecutor's intended introduction of testimony concerning numerous prior bad acts and uncharged crimes on Jackson's part. T.201-20. Initially, the trial court ruled that it would not admit every act the prosecution intended to introduce, but rather would rule on the admissibility of each incident as it was adduced by the witnesses, leaving it to trial counsel to object. T.206. Newly assigned trial counsel Joseph D'Amelio, Esq., opposed the prosecution's motion to introduce the prior bad acts evidence and moved in limine to preclude the prosecutor from asking any questions of her witnesses in regard to those alleged acts. Trial counsel argued that the only purpose of the prior bad acts would be to demonstrate Jackson's alleged criminal propensity, and that the prior bad acts would unduly prejudice the jury against him and make the jurors believe that he was more likely to have committed the crimes with which he was charged. Trial counsel argued that the inflammatory and prejudicial nature of the prior bad acts clearly outweighed any probative value they might have. Finally, trial counsel argued that the prior bad act testimony did not fall within any of the exceptions set forth in People v. Molineux, 168 N.Y. 264 (N.Y. 1901), and should be excluded. T.207-09.

The trial court ruled that evidence of Jackson's alleged prior bad acts was admissible to show "background information relevant to the issues of forcible compulsion and delayed disclosure" at trial, since the prosecution's theory was that "forcible compulsion is based upon the implied threats of violence provided by [Jackson] if the victim did not comply." T.211-12. Essentially, the trial court ruled that the prior bad act testimony could be introduced to establish certain elements of the crimes charged. T.212.*fn3 The trial court noted, however, that its decision was "not a blanket order that all and any such testimony is admissible," and that such testimony would be "taken from a witness as it comes, subject to decision and ruling." T.214. Finally, the trial court decided that while prior alleged acts and threats of violence were admissible, acts committed "any further back from five years" prior to the alleged crimes were too remote. Accordingly, the trial court stated that it was "going to confine such testimony to a period subsequent to 1994." T.214. The prior bad acts testimony would be "subject to proper presentation, proper objection." T.219.

B. The Trial

In the following section is a summary of the testimony from the witnesses called on behalf of the prosecution at Jackson's trial. The defense called no witnesses.

1. The Victims

a. Karen Jackson -- Petitioner's Ex-Wife

1.) Direct Examination

Karen Jackson testified that she married petitioner in 1983 and divorced him in 1990. She was pregnant with Gregory at the time they got married. T.281. When they divorced in 1990, neither had a lawyer; they used a "Divorce Yourself" kit. T.281. Over the seven years they were married, she had sexual intercourse with petitioner on a regular basis. Petitioner moved out for four months, but "he was over every single day." Karen did not tell petitioner not to come over during that time, nor did she call the police. Karen admitted she continued to have sexual intercourse with him regularly even after they were divorced.

Karen and Petitioner had three biological children (17-year-old GJ 15-year-old CJ, and 10-year-old JJ). T.238-39. They also had a daughter named KJ, as to whom Karen relinquished her parental rights and who was subsequently adopted by Rebecca Jackson, the woman who petitioner married after divorcing Karen. T.240. Karen testified that Petitioner decided he was not going to allow Karen to raise KJ. Apparently, Petitioner and Rebecca were having trouble conceiving a child "so that was his way of conceiving, to have me give her to them." T.240. Rebecca and Petitioner also had a 5-year-old daughter named BJ. All of them lived together in one house. New York. T.241.

Karen testified that petitioner and his second wife, Rebecca, lived with Karen and her children at 21 Tobin Drive off and on from the beginning of their marriage. Karen, Rebecca, and petitioner all owned the house jointly and were on the deed together. T.245. Karen testified that she believed she had to buy the house with them in order to be able to keep her children. He said that "[they] would buy it together to raise the children together," and if she did not agree, then "he would try to get custody of the children from [her]." T.246. Trial counsel's objection to this was overruled.

When asked what did he say would happen if she tried to leave, Karen replied, "That he would hunt me down and find me." T.247. The trial judge sustained trial counsel's objection based on lack of foundation/time-frame but did not strike the answer. Id. Karen testified that, over the past five years, petitioner said he was going to hunt her down "[f]ifteen to twenty [times] maybe." T.247. When asked to come up with a date, the most recent she could think of was "[p]robably like the winter of early 2000," when petitioner said, "He would kill me." T.248. Karen "[m]ost definitely" believed him.

Karen testified that even though she was divorced from Petitioner, she had to "ask permission to go anywhere, to do anything." Karen stated, "I was never allowed to date or remarry or anything like that with another person. I was always his property." T.242. That is what petitioner told her after they were divorced. T.242. Karen testified that once she had a friend over to the house watch a movie, and when Petitioner found out, he "took [her] out to a field and was going to chop off [her] fingers." T.242. Karen related that this occurred "[p]robably [in] 1992."

T.243.

Karen related that "[i]n '95, the spring, summer," petitioner told her that "he would hunt me down, and if he couldn't find me, he would go to my family," if she went to somebody else for help. T.249. He said "[h]e would hurt them or kill them, just to get my attention, if he couldn't find me." T.249. Karen testified that she believed petitioner.

On June 25, 1999, Karen recalled, Petitioner beat her up, leaving "bruises all over [her] face so that [she] was not able to attend [her nephew's] graduation ceremony." T.250. Karen testified, "[Petitioner] hit me in the head, slapped my face, grabbed my arms. He strangled me and I lost consciousness and the blood vessels in my face broke." T.250. Karen recalled that after abusing her, Petitioner slapped her to make her regain consciousness. Karen testified that Petitioner, after the beatings, "would apologize, but then he would always make [her] go up into his room to have sex." T.251. Karen testified that is what happened on June 25, 1999. Petitioner engaged in oral sex and then anal sex with her. Karen admitted, "I didn't verbally say no, but I wasn't allowed to either." T.252. When asked her reason for not refusing to comply with Petitioner's demands, Karen replied, "Because then it would just always be worse at times when you did say no, he would--" T.252. At that point trial counsel objected but it was overruled. Karen was allowed to testify, "If I said no, he would hit me and punch me more, so--" Karen confirmed that those retaliatory beatings "in [her] mind on that date" because "[h]e had already just done it to [her], so--" T.252.

After the June 1999 incident, in addition to the broken blood vessels, Karen was left with ringing in her ears; and her vision was blurry for several days and she suffered from headaches.

T.252. When asked why she did not go to the authorities, Karen testified, "Because I didn't--I was scared that he would find out. He would beat you even more at that point. I'm sure he would kill you." T.253. Trial counsel objected; the judge stated, "No, that's her state of mind, isn't it?" Trial counsel disagreed. The trial court stated, "Okay." The answer was allowed to stand on the record. T.253.

In January of 2000, on an unspecified date, the prosecutor asked if Karen "recall[ed] a day in January of 2000 before school that [his older son, GJ] got in trouble with the defendant?"

T.269. Karen said that GJ had written a report the way the teacher wanted instead of how petitioner wanted it done. (The trial court overruled defense counsel's objection. T.269.) Petitioner asked to see the report and then started "hitting and kicking [GJ], and [GJ] ended up -- the door was open in the kitchen . . . and [Petitioner] pushed him out through the door and broke the door, the kitchen door, and he just . . . so he fell up against the car, and then [Petitioner] ended up dragging him back inside and hitting him repeatedly. [Petitioner] was punching him."

T.271. Karen witnessed only "[s]ome of [the beatings]" because then "[Petitioner] [would] tell[ ] you to leave the room because you are not supposed to watch." T.271. There was no objection to this testimony.

The prosecutor continued this line of questioning, asking Karen, "You indicated the defendant told you to leave the room; is that right?" T.271. Karen testified that she "did leave the room because of other times when he is beating you up you are supposed to leave so--"

When asked if she tried to intervene and protect her son, GJ, Karen responded no, explaining that she did not do so "[b]ecause then if someone tries to intervene, then they get it worse." T.272. Trial counsel objected, but the trial court overruled the objection, commenting, "It goes to her state of mind. I'll allow it for that purpose." T.272.

Q. When you say 'they get it worse,' what do you mean?

A. That person would get beaten also.

Q. The person [who] tried to help? [Trial counsel]: Judge, I am going to object. We are talking about something someone would do and wouldn't do. I mean, this is about the facts. When did this occur? Let's get some dates.

The Court: Well, we did get that, I thought. [Trial counsel]: That's not what the question and answer -- what I just heard.

The Court: Okay.

Q. When you say the person would get it worse, you mean the person who was trying to help?

A. Yes. [Trial counsel]: Judge, what person are we talking about? The Court: Well, that is subject to cross-examination.

T.273.

The prosecutor then turned her inquiry to the incident involving their younger son, JJ, which occurred sometime "during November of 2000." T.273. Karen testified that when Petitioner saw their son JJ "was finishing eating one [cinnamon roll] and he still had one more in his dish, [Petitioner] started getting upset with him and yelling at him that why was he eating two cinnamon rolls, that he shouldn't be eating two, he was too fat. And then so I took the rolls away from him . . . . And then [Petitioner] started hitting [JJ], and then [Petitioner] came out to the kitchen and he started hitting me, and he punched me, and I fell to the floor, and then he started kicking me saying that I was making his child fat and I was feeding him unhealthy [sic], and it was all my fault, and what right did I have giving him two cinnamon rolls when that's the same amount that I had given Shawn. And he just started beating, kicking and hitting me, and he had already hit [JJ] across his face, both sides." T.274. There was no objection to this testimony. Karen recalled that JJ had "hand marks on his face." Id.

The next incident about which Karen testified occurred on November 27, 2000, two days before the assault that culminated in Jackson's arrest. Karen recalled that Rebecca had came upstairs and woken her up late at night. T.254. Rebecca was just wearing a blanket. They went downstairs to the living room where petitioner was waiting for them. Karen had to "take off [her] clothes so that he could have sex with us." T.256. Karen explained, "[Petitioner] would have Rebecca perform oral sex on him, and then he was -- he would fondle my breasts, and then he would -- he made Rebecca and I go onto the floor and he would make me perform oral sex on Rebecca while he had anal sex with me." T.256. The prosecutor asked Karen if she saw Petitioner "do anything to Rebecca that evening that possibly caused her injury[.]" T.256. Over defense counsel's objection, Karen testified, "[He] would put his hand onto [Rebecca's] throat so that she would almost pass out. She had foam coming out of her mouth and she could barely breathe. I could hear her struggling for air." T.256.

Karen did not tell Petitioner "no" that night because she "didn't want him to beat [her] up." T.257. Nor did she report the incident because she was "[v]ery, very scared. I didn't want him to attack me or the kids or anything else, anyone else." T.257. There was no objection to any of this testimony.

Two days later, on November 29, 2000, Karen was asleep in the bedroom
she shared with their 15-year-old daughter, CJ. T.257.*fn4
Karen testified that Rebecca woke her up and brought her
downstairs to the living room where Petitioner made Karen disrobe.
Karen explained that she laid a bed sheet down the middle of the floor
which is where the sexual activity took place.

T.314. Karen testified that first Rebecca performed oral sex on Petitioner, and then Karen performed oral sex on Petitioner. Then Petitioner directed Karen "to get down to the floor and . . . perform oral sex on [Rebecca] while he had anal sex with [her]." T.258. When asked if Petitioner had an erect penis, Karen recalled, "[s]omewhat, but not fully." T.259.

After a couple of minutes, Karen testified, Petitioner withdrew his penis from her anus. Petitioner then stood up and left the living room and went upstairs. T.259. Moments later, Karen could hear "[t]he floor creaking" in her bedroom, which was directly above the living room. Karen explained that their teenage daughter, CJ, was up there sleeping. T.259-60.

Karen testified that she could hear Petitioner's voice over the baby monitor "sometimes". "He would say things like, [r]ub, rub me. We couldn't understand why at first." T.260. Karen recalled, "[Petitioner] said that -- he said at different times that whatever happens between you and me stays between you and me." T.260. Karen testified, "He said, [d]o you understand, and I heard CJ's voice say yes to him." T.260. "He told [CJ] to sit on top of him and I don't remember the other ones right now." T.260. Karen recalled that she heard her daughter say "it hurt." T.261. At that point, the trial recessed for fifteen minutes because Karen was crying. T.261.

When she resumed the stand, Karen testified that Petitioner eventually came back downstairs. Once again, he made Rebecca perform oral sex on him, and he had anal sex with Karen. Karen testified that Petitioner was not able to fully penetrate her because he "didn't have a full erection." T.262.

After several minutes, Karen testified, Petitioner left the living room and returned upstairs, where he went "back into his room with [CJ] and had sex with her" in the bed usually slept in by him and Rebecca. T.263. (A flower-patterned fitted bed sheet was taken from this bed by the police. T.315). Over the baby monitor, Karen "could hear [CJ] say, Ow, it hurt, that he was squishing her, she couldn't breathe." T.263. Karen testified, "You could hear him saying [to CJ] just to relax, and it's okay, and then he just kept repeating, Whatever happens between you and me stays between you and me." T.263. Karen then heard Petitioner tell CJ to go back to bed.

When Petitioner came downstairs again, he told Rebecca to perform oral sex on him. Karen recalled that because Petitioner could not get an erection, he "was just rubbing his penis against [her] butt." T.263. Petitioner was able to get his penis inside her anus "[a] little bit after he was rubbing for a while." T.263.

Then Petitioner went upstairs again. Karen testified that it sounded like Petitioner went into CJ's room and brought her into his and Rebecca's bedroom. Karen said, "You couldn't make out too much. It was kind of mumbling, but you could hear -- you could hear moans and groans" over the baby monitor next to the bed in which Petitioner and CJ were. T.264.

Meanwhile, in the living room, Karen testified that she and Rebecca "were trying to figure out what to do, the safest and fastest way to do it." They decided that Rebecca should call emergency services. While Rebecca was on the line with 911, they thought they heard Jackson coming back into the living room, and so Rebecca hung up. T.263-64. Karen related that immediately the phone rang, and it was the 911 emergency operator, "recalling back to make sure everything was okay, and [Rebecca] just said yes, and that's when [Petitioner] came back downstairs, when he heard the phone ring." T.264. Petitioner wanted to know who it was, and "star 66'd [sic] the phone to try to get the phone number," but "nothing came up because he just kind of came back to Rebecca and me, in the living room." T.265. At one point during the evening, Petitioner hit Karen in the head "because he didn't think [she] was performing well enough on Rebecca." T.266.

Eventually, Jackson returned upstairs to CJ. Karen testified, "You could just hear [CJ], [saying] [']Ow['], and then [']it hurt['], but nothing else really because she -- he told her to be quiet and just relax." When asked if she could hear any other sounds, Karen testified, "You could hear the bed moving, squeaking, kind of, creaking, whatever. You could hear it getting a little faster and faster, but there was -- a lot of moans and groans." T.265. Karen testified that it sounded as though Petitioner "sent [CJ] to bed for the last time, and then he came back downstairs. Once again, Petitioner tried to have more anal sex with Karen. Karen explained that Petitioner "got frustrated because he couldn't get an erection, and finally, he sent [her] to bed, he says -- he said to just -- just get out of here, go to bed." T.266. Karen ran upstairs where she found CJ "pretending to be sleeping because she didn't know if it was him again or what." T.266. Karen testified that they both cried. Karen recalled that they were scared. She explained, "We didn't know what to do right away because you could smell alcohol on his breath, so you knew that he had had several drinks. And he is just a very violent person. We didn't know what he would do. . . ." T.266.

Eventually, Rebecca came upstairs and told Karen and CJ that petitioner was sleeping, so they used Karen's cell phone and called 911. T.266. Karen testified, "We called the police and asked them to come very quickly, very quietly, and we asked them to just come in and immediately put him in handcuffs. And they told us that they couldn't, that we had to go downstairs, one of us had to be downstairs to open the door for them. We tried to explain that he was very violent and if he woke up, that there would be a lot of trouble, but he said that's the way they had to do it." At that point trial counsel objected:

[Trial Counsel]: Judge, I am going to object to what someone else is telling her.

The Court: Well, it is hearsay. I question whether it is an exception. It really doesn't go to the truth or falsity of the statements. But anyway, cease that line of questioning and we will go on.

T.266.

When the police came, Rebecca answered the door and "just said that he is in the living room, that way." Some officers went to the living room where petitioner was, and some of them came upstairs. T.268.

Karen explained why she did everything Petitioner told her to do that night: "I didn't want to be hit or beaten or--you could smell the alcohol on his breath right away so you kn[e]w that he had alcohol in him, and I didn't want anything violent to happen." T.269.

2.) Cross-Examination of Karen Jackson

Trial counsel attempted to question Karen about how long it took before the three of them started having sex together, after Rebecca and petitioner got married. T.284. The trial court excused the jury and the following colloquy occurred:

The Court: I am going back to my ruling made prior to the trial concerning a limitation in time here. I think by nature of your cross-examination, though, you may be opening the door to the nature of the relationship that existed prior to 1995, so as long as you know that--

[Trial Counsel]: Judge, the witness got it out after you made your ruling, she got that out, and I am trying to cure that at this point. We tell the jury to disregard these things, but they have heard it already.

The Court: As long as you -- I didn't tell them to disregard that, but now that you are into this, I guess it's -- I don't know what [the prosecutor] intends to do, but I just want you to k now that I feel this line of questioning negates my ruling of 1995. Okay.

T.284-85.

Karen admitted that she, Rebecca, and Petitioner had group sex regularly "a couple times

a week" for the past five years. She admitted she did not call the police after any of the previous times they had sex. T.287. Nor did Rebecca call the police on any of these occasions. T.288. Karen testified that she only "pretended" to have oral sex with Rebecca. T.287. Karen claimed that she "put [her] head between [Rebecca's] legs, but [she, i.e., Karen] didn't do anything[.]"

T.288. Trial counsel attempted to discredit Karen's claim that Petitioner "would not let her get on with her life" by pointing out that while all this allegedly was going on, she had a job at a flower shop and worked outside the home. Karen acknowledged this but testified that she did not work "right away" after the divorce. T.289. She agreed that she never called the police to complain about having to live with Petitioner after the divorce or that petitioner had threatened to hunt her down if she left.

Trial counsel's questioning had the unintended effect of allowing Karen to provide further details about Petitioner's prior threats and acts of violence against her:

Q. Did you ever leave him?

A. Yes.

Q. When was that?

A. When we were married.

Q. He didn't kill your family, right?

A. No, he found me.

Q. You are alive right now, right?

A. Yes, after a very hard beating.

Q. But you didn't call the police after that, right?

A. No, I was scared to.

Q. So you took a beating, but you didn't call the police?

A. Correct.

Q. As a matter of fact, you moved back into his house, right?

A. Yes.

T.290.

Karen admitted that during the time period when Petitioner was attempting to have her relinquish her parental rights with regard to their youngest daughter, she did not call the police and did not seek the assistance of a lawyer. T.296-97.

Karen explained that on the night that they called the police, she, CJ, and Rebecca sat up for "[p]robably an hour, hour and a half" before they called 911 the second time. T.298. Karen said that they "were crying and shaking and very scared." T.299. Rebecca stayed at the house while Karen and CJ went to the hospital.

Trial counsel questioned Karen about the tests they did at the hospital, eliciting that they took vaginal and anal swabs, samples of pubic hair, photographs of her breasts, and a saliva sample. However, because the medical records were not in evidence, the prosecutor's objection thwarted trial counsel's attempt to cross-examine Karen about what he apparently perceived to be the lack of positive findings during her medical examination:

Q. You didn't have any bruises or cuts or lacerations, or anything like that when you reported, correct?

A. No, because he had hit me in my head, so there wasn't a bruise.

Q. There was no bruise on your head?

A. No, because it was inside of my hair.

Q. And your anal area and vaginal area, no bruises, lacerations, cuts, anything like that? [The prosecutor]: Objection, beyond the scope of knowledge.

The Court: Sustained, unless there is some foundation.

Q. Did you complain of any injuries in your vaginal or anal area?

A. Injuries, no.

Q. From your observations did you see whether or not you were scratched or bruised or cut in those areas?

A. I didn't personally look.

Q. You didn't feel any, right?

A. Around my anal area it always felt like there was cuts.

Q. I'm sorry?

A. Around my anal area there always felt like there were cuts, so--

Q. The medical personnel, they took a swab of this?

A. Yes.

Q. And they put it in a bag and sealed it, and what, gave it to the police?

A. I assume so, yes. . . .

T.301-02. Karen did not know what happened to the clothes that she was wearing at the hospital. She did "[n]ot really" remember talking to the police at the hospital. T.303. She and CJ were taken to the Greece Police Department and were separated to give statements. Karen had not had any sleep was "very, very tired and having a hard time staying awake . . . ." T.304. She did not recall what time of day it was. She repeated that she was "very scared." T.305. The police interview lasted a "couple of hours." The police officer prepared the typewritten statement. The police did not give her a piece of paper and say, "write down everything that happened." T.306.

Trial counsel questioned her about her statement that petitioner could not penetrate her fully. He asked if she told petitioner to stop; she replied, "No, I didn't want him to beat me up."

T.306. During trial counsel's cross-examination, Karen reiterated her reasons for not ever saying no to Petitioner--because she was scared of being beaten:

Q. The five years, two times a week, that this happened, did you tell him to stop?

A. I did in the beginning, and I got beat up for it, so therefore, I learned not to.

Q. You just stopped saying, Don't do it?

A. Right, because he said not to argue with what he was saying, what he wants goes.

Q. During the five years you didn't call the police and say, Mr. Jackson is doing this to me and I don't want him to do it?

A. No, because I was scared.

Q. And you were scared for your children, too?

A. Very much so.

Q. And you didn't call the police based upon that also, correct?

A. Correct.

T.306-07.

Trial counsel attempted to question Karen about her being involved in a Family Court

matter with respect to the allegations in this case that pertained to her children. T.316. The trial court sustained the prosecutor's objection on relevancy grounds. Trial counsel argued that he should not be precluded from "getting into the specifics of her actions because it gives her a bias or a motive to lie in this proceeding, it goes directly to bias[,]" because "[s]he is the respondent in a neglect/sexual abuse case." T.317. The trial court found that even if the Family Court matter was not based solely on the criminal charges at issue, "it is only an allegation of someone else." Id.

Trial counsel argued that there were "certain statements" made by Karen to the child abuse caseworker that constituted "admissions . . . that could very well be Brady [material]," presumably impeachment material regarding Karen. T.317, 319. The trial court reiterated that the fact of the Family Court proceeding and Karen's involvement therein were "absolutely irrelevant to anything" at trial. T.319-320. The trial court asked trial counsel to "show [him] an admission," and trial counsel indicated that he did not believe he was supposed to review the child protective services file because of privacy issues. The trial court stated, "Well, it is going to take hours to review this entire matter. Do you know--if you know of something, fine; otherwise, we will go ahead with this, and in my leisure I will go through it." T.320. Trial counsel asked if Karen would be subject to recall. The trial court replied, "Brady [sic], and subject to recall, but I don't see anything at this point in time, other than a rehash of this incident. I mean, just off the record, it appears that [Karen] may be the respondent in an action in Family Court by virtue of passive [sic], which they [sic] do all of the time." T.320, 321.

After reviewing the file, the trial court did not find anything that deviated from the testimony provided by Karen, and there was no indication that a final determination had been made. T.334. The trial court stated that it "mirrors most of what the investigation apparently has indicated and Counsel has had access to." T.325. Therefore, the court declined to allow trial counsel to cross-examine Karen about the Family Court proceeding. T.335.

3.) Re-Direct Examination of Karen Jackson

On re-direct examination, Karen was permitted to provide more details about how petitioner continued to have sex with her after their divorce despite her lack of an invitation to do so. See T.325-26. Karen testified what would happen any time she "tried to refuse to have group sex with [Petitioner]." T.326-27. She stated, "He would forcibly hold you down, hold me down to do as he wished, and if I did, when I did refuse, he would hit me, and then I learned not to [refuse], didn't want that to happen again." T.327.

Karen provided further details about what happened on the one occasion when she left him during their marriage; the promises he made to change; and the beating he inflicted when he found her. T.327-38. Over objection, Karen testified further about the time he attempted to have her surrender parental rights to KJ, stating that she felt like she had no choice because he told her that if she did not, he was going to have to sign off her rights for all of the other children, too. T.328. When asked what made her decide that calling the police was the right thing to do, she replied, "I didn't want anything to ever happen again. It just crossed the line. I didn't want her [i.e., CJ] to be hurt ever again like that." T.330.

4.) Re-Cross-Examination of Karen Jackson

Trial counsel attempted to use this last round of questioning to get Karen to admit that "the sex [she] was having with Shawn and with Rebecca was permissible[.]" T.330. Karen would not agree that she consented to it, but admitted,"I did not say no to him verbally, no." T.331. Karen claimed that on every occasion that she had sex with petitioner, she did not really consent to it because she was scared. T.331. She claimed that she "never wanted him" to have sex with her. She stated she said no in the beginning, but she "got beaten up for it." She did not call the police because she "was too scared" and "[h]e threatened [her]." T.332-33. She stated that given her fear for her children, she did not call the police. T.333.

b. Rebecca Jackson, Petitioner's Current Wife

1.) Direct Examination of Rebecca Jackson

At the beginning of her testimony, Rebecca described an incident in which Petitioner had allegedly raped Karen six years earlier, leading to Karen becoming pregnant with their youngest daughter, KJ (not a victim identified in the indictment). T.349. Trial counsel moved for a mistrial because this testimony was in violation of the trial court's prior bad acts ruling, but the trial court denied the motion, and again directed the jury to disregard that testimony. T.349.

Rebecca's testimony regarding the events of the night of petitioner's arrest was in all essential respects the same as that provided by Petitioner's ex-wife, Karen. See T.358-365. Rebecca also testified about the incident in June of 1999, when GJ had gotten a bad grade on a test at school, and Petitioner had started punching and kicking him, and saying that Child Protective Services "was going to come and take everything away and that [GJ] put our house in jeopardy by" allegedly telling his teacher that he would get being beaten if he did not get good grades. T.365-66. Rebecca testified that she did not try to intervene "because I had seen in the past, and in the past when he was beating somebody --" T.366. Trial counsel objected based upon the lack of a specific time frame. T.366-67. Rebecca was allowed to testify about an incident "a few years ago", "[l]ess than five", when Karen "tried to prevent [petitioner] from hitting [GJ]and it made him angrier, and he beat Karen up and he hit [GJ] worse because she was trying to help him." T.367. Trial counsel did not object to this testimony.

Over trial counsel's objection, Rebecca was permitted to testify about a "an incident that occurred during June of 1999 when [Petitioner] was angry at her for something[.]" T.350. Petitioner locked her out of the house, and then he cut the crotch out of her shorts and took off her underwear, and cut her shirt really short, and "said that [she] was going to work for him, and told [her] to get in the van." T.351. He then drove her downtown to the Driving Park Bridge, and made her get out and walk around on the bridge while he followed her in the van. Petitioner told Rebecca that she was "his bitch" and he was "going to prostitute [her] to make money for him because [she] was worthless." T.352. She complied with his demands "[b]ecause any time I didn't do what he said he would hit me." Id. Rebecca testified, "[Petitioner] always threatened me and told me that if I broke the sanctity of our marriage by telling anybody about the abuse that he would cut me into little pieces and spread my body through the Tri-county [sic] area so nobody would find me or know that I was gone." T.353.

Rebecca was allowed to testify about another incident that occurred around Father's Day of 2000 when Petitioner got mad at her for smiling at one of his friends. The next day, he chased her into the kitchen and punched her in the face, and knocked out her right front tooth, breaking it in half. T.353. Rebecca did not seek dental care "[b]ecause I wasn't allowed to. How would I explain how that happened?" T.354. Karen went to the store and bought SuperGlue and glued the tooth back in. Rebecca had just gotten it fixed a month before trial. She did not report the abuse because she was afraid Petitioner would kill her. Rebecca testified that Petitioner had also threatened to kill her family members and anybody from whom she sought help. T.354-55.

About a week after the Father's Day incident, Rebecca recalled, she told Petitioner about a bad dream she had about her teeth falling out, and he told her it was all her fault and it would not have happened if she had not smiled at his friend. Rebecca recalled that Petitioner held her down by the throat so that she could not breathe. He became mad because she was resisting him, and he then punched her in the face. Rebecca testified that her face got all swollen. This incident occurred in their bedroom while their two youngest daughters were sleeping merely several feet away from them, and the incident began to wake the two youngster. Petitioner hit her body "a couple of times". T.355. As a result of the punch to her face, her jaw was sore and it was hard to open her mouth and chew food. Later that day, he had sex with her "[a]t least five times." They had both vaginal and anal sex. She never told him that she did not want to have sexual intercourse that day "because if I did anything to resist him, then he would get angry with me and he would hit me, so I just stopped resisting him." T.357. She did not report the abuse that day because she was afraid he would kill her or her family. T.357.

Finally, Rebecca testified about an incident on Thanksgiving of 2000, when JJ was doing certain reading Petitioner required him to do in the morning, and GJ was shoveling the driveway. Petitioner got angry because JJ was not helping GJ and "told him he was going to kick his ass" and "chased him around the hallway and started kicking him with steel-toed boots . . . ." Petitioner kicked him two or three times. T.368. Trial counsel did not object to this testimony.

2.) Cross-Examination of Rebecca Jackson Trial counsel attempted to demonstrate, through questioning about their living arrangement and sexual activities with petitioner, that all of the sexual activities in which she engaged were consensual. T.376-77. Rebecca explained they began having group sex in 1996; they would always have sex downstairs in the living room and often would watch pornographic videotapes. T.377-78. Rebecca testified that "[e]very time" they had sex, she "pretended to do things" with Karen so that "he wouldn't hit us." T.378. Trial counsel later argued that this representation could not have been true and showed that Rebecca was not credible.

Rebecca admitted that during the incident on Driving Park Bridge when Jackson made her pretend to be a prostitute, she did not flag down any cars or walk into a store or in any other way try to get help. T.380-81. She admitted that she never told him not to call her his bitch. She volunteered that "petitioner stressed to [her] many times as far as [she] was concerned [she] was his property and [she] had to do what he [told] her to." T.381. She testified petitioner "insisted" that they have sex at least three times a day, but she never told him no. T.387.

Rebecca admitted that she did not go to the hospital that evening. She was never examined by medical personnel about the alleged sexual assault. T.385. She did not go to the police station; rather, the officers took a statement from her at the house. T.385.

On the night of the arrest, she told CJ that they had to call the police because "there is evidence." T.386. She admitted that "[m]aybe an hour" elapsed between Petitioner falling asleep and their calling 911 for the second time. T.388, 390. She admitted she did not tell the police "that evening" she also had been sexually assaulted; rather, she first told the police when she "gave [her] statement that morning," T.391, that is, the morning after the arrest.

During cross-examination, trial counsel asked if she wiped anything on the sheet during the sexual activity, and she replied that when Petitioner put his penis in her mouth, "there was [sic] pubic hairs that [she] could feel." T.391. So she wiped her tongue with her fingers and wiped it on the sheet. T.391-92. (This sheet was collected by the police.)

Trial counsel then asked her to identify pictures of rooms in their house at Tobin Drive and elicited that after Petitioner was arrested, she moved out for one week from the Tobin Drive residence and went to stay with a person named David DeJohn, a friend of Petitioner's. Trial counsel also elicited that the children were required to ask permission before playing with the video games.

3.) Re-Direct Examination of Rebecca Jackson

Rebecca also was permitted to testify, over objection by trial counsel, that Jackson had killed a puppy in front of her by smashing its head repeatedly. T.396-97. Trial counsel unsuccessfully objected that it was too prejudicial and remote and was being allowed merely to show Petitioner's alleged propensity to be violent, contrary to the trial court's prior ruling on badact testimony. See T.168. The prosecutor questioned Rebecca about why, during the incident on Driving Park Bridge, she did not try to escape:

Q. What was it that was in your mind that kept you from trying to escape? [Trial counsel]: Judge, that's been asked and answered on direct. The Court: I don't recall it, but I will allow it.

A. He told me that if I ever tried to escape or leave from him that he would hunt me down, that he would kill my family. He had once murdered a puppy in front of me with a hammer. [Trial counsel]: Objection, Judge.

Q. When was it that that happened? [Trial counsel]: Objection, Judge The Court: What is the objection? [Trial counsel]: People v. Molineux.

The Court: I have already ruled on that. Overruled

Q. When was it that the incident happened with the puppy?

A. In 1998 when we lived on North Greece Road.

Q. What was it that happened that was in your mind in June of 1999.

A. Just fear and knowing what he is capable of.

Q. What was it that he did to the puppy that was in your mind that you remember?

A. He took a hammer and smashed it in the head and murdered it and then kept hitting and pounding it and looked very scary. He did it in front of me.

T.396-97.

4.) Re-Cross-Examination of Rebecca Jackson

Q. This puppy that you say Shawn killed with a hammer, before this puppy -- before he killed it, you threw the thing down the stairs, right? [The prosecutor]: Objection. It is irrelevant.

The Court: No, I will let him go into it.

Q. You threw him down the stairs?

A. No.

Q. And his back was broken?

A. No, that's not --

Q. And his leg was broken; isn't that right?

A. No, it is not.

Q. Shawn bought the puppy, right?

A. Yes.

T.396-97.

Rebecca admitted that she knew how to use a phone, and that she never told any family members on the night of the arrest to tell them what she was doing. Trial counsel attempted to question Rebecca about incidents and occasions that she had attended outside the home with other family members, apparently to show that she never took opportunities to ask for help. However, the trial court sustained the prosecutor's objection on the grounds that it was beyond the scope of re-direct. She admitted ...

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